The labor law aspects of parental leave

The BEEG replaced the BErzGG with effect from January 1, 2007 and, like the BErzG, is intended to promote the compatibility of bringing up children and ^working2. With a view to strengthening women’s employment and demographic ^{developments3}, the legislator aims to change the framework conditions for equal participation in family responsibilities and ^employment4. The recognition of parental leave in statutory pension insurance and the BEEG are significant contributions.

The labor law provisions of the BEEG (§§ 15 to 21) are intended to promote the care of a child in its early phase of life while at the same time giving parents the freedom to choose between home care and gainful employment. In addition to the entitlement to parental ^allowance5 (until 2006: child-raising allowance), the BEEG therefore grants the option of taking time off without losing one’s job during parental leave (formerly: parental leave) and alleviates the conflict between career realization and family planning.

Unlike in the past, not only mothers, but all legal guardians can claim temporary suspension of their obligation to work for up to three years at a time, either alone, alternately or jointly (this is the intention behind the change in terminology from “parental leave” to “parental leave”). Sections 15 et seq. allow employees to take a break from work or reduce the amount of work to raise children without being forced to give up their livelihood.

According to Section 15 (2) sentence 6, the entitlement to parental leave cannot be excluded or limited by contract. Agreements that conflict with this mandatory law are therefore invalid in accordance with Section 134 BGB. Contrary to what the wording of the law might suggest at first glance, the de facto mandatory requirement, which is only binding on the employer, also applies to the company partners and the parties to the collective ^agreement6 in addition to the individual contractual level.

While the granting of parental allowance within the meaning of §§ 1 ff^.7 is intended to compensate for the economic loss for the period of temporary complete or partial abandonment, the individual entitlement to parental leave under employment law supports the need of parents/guardians to be able to carry out the actual child-raising work through partial or complete release from the obligation to work.

In contrast to vacation law, exemption from the obligation to work does not take the form of time off granted by the employer. Nor is an agreement between the parties required for the temporary suspension of the obligation to work. Rather, the exemption occurs solely when parental leave is registered in accordance with the formal requirements. § Section 16 therefore also refers to the use of parental leave. The rules for granting leave cannot be applied in this respect.

The current version of the BEEG, as discussed here, applies to custodians who raise children born or taken into care after January 1, 2007. Otherwise, the provisions of the BErzGG in the version valid until December 31, 2006 continue to apply in accordance with § 27 (1). Insofar as there are no changes to the previous legal situation, the previous case law remains relevant.

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1) Unless otherwise stated, all paragraphs without reference to the law are those of the BEEG.
2) On the whole: Körner-Dammann NJW 1994, 2056; Pfarr ZRP 1994, 309.
3) At 1.36 children per woman, Germany currently has one of the lowest birth rates in the world with a continuing downward trend (cf. BT-Drs. 16/1889, 1)
4) BT-Drs. 16/1889, 18.
5) A brief overview is provided by Giesen/Ricken, NZA 2007, 192; for more detail: Brosius-Gersdorf, NJW 2007, 177 ff.
6) ErfK-Dörner § 15 BErzGG para. 14.
7) Since January 1, 2007, this has been available to all persons entitled to parental leave in accordance with § 2 in the amount of 67% of the previous income up to a maximum amount of EUR 1,800.00; and in accordance with § 4 para. 1 for a period of up to 14 months, whereby the payment period can be extended to up to 28 months in accordance with § 6; for the entitlement to child-raising allowance previously linked to income limits, see § 5 BErzGG.

• Realization of claims
• Authorized group of persons
  • Personal requirements
    • Definition of employee
    • Cumulative authorization
  • Family requirements

The content and scope of the entitlement to parental leave are set out in § 15, while the procedure for claiming and changing parental leave is regulated in § 16.

• Family requirements
  In addition to the type of employment basis, a further requirement for entitlement to parental leave is that the care and upbringing of a child with whom there is a legal relationship within the meaning of Section 15 (1) sentence 1 no. 1 a to c is provided in a domestic economic and living community and is not left to others. However, this does not preclude the assistance of third parties such as aupair employees or family members.

  There does not have to be a family relationship in the legal sense with the child to be cared for and raised for whom custody is granted (in which case Section 15 (1) sentence 1 no. 1 a) applies). However, according to Section 15 (1) sentence 2, the consent of the parent with custody is always required if, in the cases of Section 15 (1) nos. 1 b and c, non-custodial parents or other persons wish to take parental leave for the child concerned.

  Otherwise, entitlement depends on the degree of family ties to the child. Anyone who has taken a child of their spouse or civil partner into their household is also entitled (§ 15 Paragraph 1 Sentence 1 No. 1 b in conjunction with § 1 Paragraph 3 Sentence 1 No. 2). While no entitlement can be derived from a marriage-like relationship as ^such13, the entitlement for the respective parent in such a relationship already arises from § 15 Para. 1 Sentence 1 No. 1 a.

  The legal relationship with the child is decisive if the child has been taken into the household

• with the aim of adopting the child as their own (§ 15 Paragraph 1 Sentence 1 No. 1 b in conjunction with § 1 Paragraph 3 Sentence 1 No. 1, adoption care in accordance with § 1744 BGB), whereby the consent of the custodial parent is required, or
• as part of full-time care in accordance with § 33 SGB III (§ 15 Paragraph 1 Sentence 1 No. 1 c), also with the consent of the custodial parent, or
• after declared (§ 1594 paragraph 2 BGB) but not yet effective acknowledgement of paternity (§ 15 paragraph 1 sentence 1 no. 1 b in conjunction with § 1 paragraph 3 sentence 1 no. 3) with the consent of the custodial mother (§ 15 paragraph 1 sentence 2), or
• in the case of an application to establish paternity within the meaning of Section 1600d BGB (Section 15 (1) sentence 1 no. 1b in conjunction with Section 1 (3) sentence 1 no. 3), which has not yet been decided, also only with the consent of the custodial mother (Section 15 (1) sentence 2).

In cases of hardship, if both parents are deceased or are unable to care for their child themselves due to serious illness or severe disability, parental leave can also be claimed by relatives up to the third degree (see § 1589 Paragraph 1 BGB), i.e. grandparents, great-grandparents, aunts and uncles as well as siblings of full age and their spouses or registered partners, unless other entitled persons make use of it (§ 15 Paragraph 1 No. 1 b in conjunction with § 1 Paragraph 4).

The previous hardship provision in the event of a significantly endangered economic existence (§ 15 Paragraph 1 Sentence 1 No. 1 d BErzGG in conjunction with § 1 Paragraph 5 BErzGG) was abolished with effect from January 1, 2007. Parental leave entitlements that arose before January 1, 2007 can still be claimed until December 31, 2008 in accordance with the transitional provision of § 27 Paragraph 2 Sentence 2, but depending on the date of birth, in extreme cases they may even fall behind the duration of parental allowance entitlement under federal law.

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8) EltZV in the version published on November 11, 2004 (BGBl I 2841).
9) EltZSoldV in the version published on November 18, 2004 (BGBl I 2855).
10) This also includes persons with learning disabilities or social disadvantages within the meaning of §§ 68 et seq. BBiG.
11) In general on this complex of topics: Wank, Arbeitnehmer und Selbständige, 1988; Berger-Delhey/Alfmeier NZA 1991, 257 ff.; Hromadka NZA 1997, 569 ff. and 1249 ff.; NZA 1998, 1 ff.; NJW 2003, 1847 ff.
12) Lindemann/Simon, NJW 2001, 258 (259); see also Reiserer/Lemke MDR 2001, 241, who, contrary to the clear wording, only want to take into account the double burden of an employer employing both entitled persons.
13) BT-Drs. 16/1889, 19.

• Taking parental leave
  • Announcement
    • Notification period
  • • Periods
• • Legal consequences of incorrect notification

• Duration and location of parental leave
  As each child is entitled to parental leave for a maximum of three years, the beneficiaries may not take parental leave for more than three consecutive years of the child’s life. It follows from Section 15 (2) sentence 1 that the connecting factor is the time dedicated to the child, which can be taken alternately, jointly or alone. The wording of Section 15 (3) sentence¹²⁶ contradicts the view that parents working for the same employer can take a maximum of three years of parental leave in total (on a pro rata basis)²⁵.
  As the announcement of parental leave and the location of the periods of absence, which are fixed for at least the first two years, has a (binding) design effect, the intended and notified breaks from work should be carefully considered. For example, anyone who requests parental leave for one year after the birth of the child will have to return to work in the second year of the child’s life. Any change is then only possible with the employer’s consent in accordance with Section 16 (3) sentence 1 before the second birthday.

  According to § 16 Paragraph 1 Sentence 5, parental leave can be divided into two periods without the employer’s consent. The extension of parental leave that initially lasts until the end of the child’s second year of life into the child’s third year of life does not constitute the start of a new ^period27 because the reference period for parental leave is the first three years of life, as stated in Section 15 (2) sentence 1. Consent is therefore only required if a third completed period begins with the extension.

  Section 15 (2) sentence 2 now makes it clearer than before that the maximum period of three years is not extended by the protection period under Section 6 (1) MuSchG. If the natural mother of the child takes parental leave, she cannot be released again from her obligation to work, which was suspended during the maternity protection period. Parental leave is therefore legally excluded. Maternity protection periods are nevertheless counted towards the maximum three-year parental leave.

  According to 15 para. 2 sentence 3, if there are several children, the entitlement to parental leave exists for each child, even if the periods within the meaning of sentence 1 overlap. This provision can initially be understood to mean that in the case of a short birth sequence, a total of three years of parental leave should be taken for each child. However, it is undisputed that sentence 3 refers to sentence 4 and only concerns the case of the transfer of a residual entitlement (subject to approval) to the fourth to eighth year of the child’s ^life28.

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25) Peters-Lange/Rolfs, NZA 2000, 682 (685).
26) Buchner/Becker § 15 BErzGG para. 15; Winterfeld, DB 2004, 930 (932).
27) Winterfeld, DB 2004, 930 (933).
28) Sowka, NZA 2004, 82 (83); Winterfeld, DB 2004, 930 (932).

• • Remuneration
  • Pension provision
  • Effects under collective law
  • End of parental leave

• • Effects of parental leave on the employment relationship²⁹
    During parental leave, the reciprocal primary obligations arising from the employment contract, i.e. the obligation to perform work and the obligation to pay ^{remuneration30}, are suspended unless part-time employment is exercised to an extent permitted under Section 15 (4) sentence 1. However, as the employment relationship is not affected in its fundamental existence, all secondary contractual obligations continue to exist unchanged during parental ^leave31.

    • Remuneration
      Neither the principle of equal treatment under employment law nor Article 141 of the EC Treaty prohibit the suspension or reduction of a special allowance during an employment relationship that has been suspended due to parental ^leave32. Whether and to what extent special allowances may be cut in full or in part during parental leave is therefore determined by the non-statutory basis (employment and collective agreement as well as company practice⁾³³. The decisive factor is the purpose of the allowance ^agreement to be determined by interpretation34.

      If only work actually performed is to be remunerated, the obligation to pay remuneration is waived (pro rata) during parental leave even without an explicit reduction agreement³⁵to the extent that this does not have the effect of discriminating against part-time employees (as is the case under the collective agreement on benefits for public sector employees) compared to those who are fully released from work during parental leave³⁶. On the other hand, rewards promised for loyalty to the company irrespective of any consideration must continue to be ^granted37.

      Pure benefits in kind, such as subsistence allowances, which are linked to the mere existence of the employment relationship, remain in place even if the employment relationship is ^suspended38. However, entitlements to other benefits in kind such as board, meal allowances and the like, which are granted on the occasion of actual work performance and attendance, do not apply if no part-time employment is exercised during parental leave. The extent to which parental leave affects periods of probation (probationary advancement)³⁹ is problematic.

      If pay-determining factors are linked to seniority, there is gender-specific discrimination. Since, according to empirical findings, it is predominantly women who take parental leave, this constitutes indirect discrimination within the meaning of Section 3 (2) AGG. However, since professional experience and specific skills increase with the duration of actual employment, this is likely to be justifiable under Section 8 (1) ^AGG41, at least because of the guarantee of correctness in ^collective agreements40.

      Whether and to what extent there is an entitlement to additional vacation pay (in addition to vacation pay) or capital-forming benefits must also be determined by interpreting the relevant ^provisions42. For example, the payment of additional vacation pay usually depends on the actual granting of vacation. However, no leave can be granted during parental leave because parental leave already exempts the employee from the obligation to work and any further entitlement to leave is legally impossible.

      Incapacity to work due to illness during parental leave does not lead to an obligation to continue to pay remuneration, as the illness is not the cause of the absence within the meaning of Section 3 (1) ^EntgeltFG43. It also does not extend the leave of absence due to parental leave, as there is no provision comparable to § 9 BUrlG. Illness before the start of the intended parental leave has no influence on an already running period, unless it was declared at the same time that the parental leave should only start after ^recovery44.

      If parental leave ends with an incapacity to work due to illness, there is an entitlement to continued payment of remuneration in accordance with the provisions of the EntgeltFG. The resumed obligation to work is immediately suspended due to incapacity to work as a result of illness and therefore the incapacity to work is the sole cause of the absence from work. Periods of illness during the suspension phase are also not counted towards the six-week period of continued remuneration, as an inability to work is only conceivable once the obligation to work has been ^updated45.

    • Old-age^pension46
      In statutory pension insurance, periods of child-raising are taken into account as pension-increasing periods in accordance with Section 56 SGB VI, but only for one parent. In the company pension scheme, the employment relationship or employee status is the connecting factor. As the existence of an employment relationship remains unaffected during parental leave, this does not interrupt the vesting periods or the length of service in accordance with §§ 1 b and 2 ^BetrAVG47.

      In the opinion of the Federal Labor Court, however, the contribution-dependent nature of pension benefits justifies excluding periods of complete absence from work during parental leave from increases in an entitlement to company pension benefits as part of a so-called service-time-dependent calculation⁴⁸. Whether this case law will stand up to developments in the field of legal protection against discrimination remains to be seen with regard to the prohibition of indirect discrimination against ^women49.

    • ^Effectsunder collective law50
      The right to vote and stand for election to the company employee representative ^body51 remains in place despite leave of absence during parental leave, as do other rights arising from the BetrVG, which merely require the existence of an employment relationship.

      Therefore

      • a works council member on parental leave must make a clear declaration regarding the determination of a temporary case of prevention within the meaning of Section 25 (1) sentence 2 BetrVG,
      • participation in a works meeting triggers the entitlement to remuneration pursuant to Section 44 (1) sentence 2 BetrVG (no loss of pay principle⁾⁵²,
      • travel expenses required to attend a works council meeting of a works council member released from work during parental leave are ^{reimbursable53} and
      • the rights of participation, information and complaint pursuant to Sections 81 et seq. BetrVG must continue to be ^observed54.

The release of works council members on parental leave with a reduction in working hours to zero for the purpose of attending training events within the meaning of Section 37 (6) and (7) BetrVG is legally impossible because the obligation to work is already suspended due to parental leave. An obligation to pay remuneration for periods of participation in such events therefore fails because the obligation to continue payment based on Section 37 BetrVG is based on the principle of loss of ^earnings55.

If a social compensation plan bases the amount of severance pay on the duration of actual employment, the parties to the company exceed their regulatory discretion to the extent that periods during which the person concerned was on parental leave are to be disregarded. In the opinion of the Federal Labour Court, the value decision of the community obligation of Article 6 (1) and (2) GG substantiates the obligation of the parties to the works council arising from Section 75 (1) BetrVG in terms of justice and fairness^.56

It has not yet been decided whether the calculation of the social plan severance payment may be reduced on a pro rata temporis basis if the reduction in working hours is limited to parental leave. The Federal Labour Court does not recognize a violation of Section 4 (1) TzBfG if the actual scope of employment is only reflected proportionally in the severance payment amount, as long as complete absences are not taken into ^account57. However, the extent to which (temporary) part-time parental leave may also be taken into account remains unclear.

• • • End of parental leave
      If the employment relationship is terminated, the parental leave also ends. This also applies after the expiry of a fixed ^term58. Furthermore, the mutual main contractual obligations are reinstated at the end of parental leave without the need for a declaration to this effect. This also applies after a transfer of ^business59. If the part-time entitlement within the meaning of Section 15 (5) to (7) has been exercised during parental leave, the original employment obligation shall be reinstated at the end of parental leave.

The specific assignment after the end of parental leave is determined by the (collective) contractual and company provisions. Although there is generally no entitlement to employment at the previous workplace, Section 2 (5) of Directive 96/34/EC of June 3, 1996 (on the framework agreement on parental leave concluded by UNICE, CEEP and ETUC) grants the right to be assigned to equivalent or similar work to that previously agreed in the employment contract.

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29) On the question of the deduction of income-related expenses during parental leave: BFH, judgment of July 22, 2003, DStR 2003, 1611.
30) BAG, judgment of May 10, 1989, NZA 1989, 759 (759 f.); on the question of participation in the collectively agreed upgrades dependent on the duration of employment: Köster/Schiefer/Überacker, DB 1994, 2341 (2343).
31) See BAG, judgment of May 30, 1978, AP No. 9 on Section 60 HGB; LAG Düsseldorf, judgment of July 2, 1999, NZA-RR 2000, 232 (234); Anne Horstmann, Rechte und Pflichten der Arbeitsvertragsparteien bei der Inanspruchnahme von Elternzeit, 2002, 22 ff.
32) ECJ, judgment of October 21, 1999 “Lewen” AP No. 14 on Art. 119 EC Treaty; BAG, judgment of January 12, 2000, AP No. 223 on § 611 BGB “Gratification”.
33) Anne Horstmann, Rechte und Pflichten der Arbeitsvertragsparteien bei der Inanspruchnahme von Elternzeit, 2002, 52 ff.
34) cf. BAG, judgment of November 26, 2003, AP No. 30 on § 1 TVG “Tarifverträge: Lufthansa”; contributions for direct insurance: LAG Nuremberg, judgment of August 27, 2002, NZA-RR 2003, 318 (319); Christmas bonus: LAG Berlin June 8, 2001 NZA-RR 2001, 467 (468); 13th monthly salary: LAG Cologne, judgment of June 16, 2000, NZA-RR 2000, 625 (626).
35) BAG, judgment of April 19, 1995, NJW 1996, 278 (278); LAG Cologne, judgment of June 16, 2000, NZA-RR 2000, 625 (626).
36) BAG, judgment of February 12, 2003, AP No. 37 to § 15 BErzGG; BAG, judgment of January 12, 2000, AP No. 23 to § 22 BAT “Zuwendungstarifvertrag”; BAG, judgment of February 24, 1999, AP No. 21 to § 22 BAT “Zuwendungstarifvertrag”.
37) LAG Berlin, judgment of June 8, 2001, NZA-RR 2001, 467 (468).
38) Anne Horstmann, Rechte und Pflichten der Arbeitsvertragsparteien bei der Inanspruchnahme von Elternzeit, 2002, 118 ff.
39) BAG, judgment of November 9, 1994, NZA 1995, 1003 (1003); BAG, judgment of June 18, 1997, NZA 1998, 267 (267).
40) ArbG Heilbronn, judgment of April 3, 2007, juris para. 21 et seq..
41) Cf. ECJ, judgment of October 3, 2006, EuZW 2006, 693, according to which employees must provide evidence for serious doubts about this assumption.
42) BAG, judgment of April 11, 2000, NZA 2001, 512 (512); BAG, judgment of September 6, 1994, NZA 1995, 232 (232 f.); ArbG Freiburg, judgment of January 10, 2002, NZA-RR 2002, 461 (462).
43) BAG, judgment of June 22, 1988, NZA 1989, 13 (13).
44) BAG, judgment of October 17, 1990, NZA 1991, 320 (321).
45) BAG, judgment of September 29, 2004, AP No. 24 to § 3 EntgeltFG.
46) Anne Horstmann, Rechte und Pflichten der Arbeitsvertragsparteien bei der Inanspruchnahme von Elternzeit, 2002, 77 ff.
47) BAG, judgment of February 15, 1994, NZA 1994, 794 (794).
48) BAG, judgment of February 15, 1994, NZA 1994, 794 (796 f.), inter alia with reference to the discrimination of part-time employees with lower entitlements.
49) See, however, the exception in Section 2 (2) sentence 2 AGG for occupational pension law.
50) Anne Horstmann, Rechte und Pflichten der Arbeitsvertragsparteien bei der Inanspruchnahme von Elternzeit, 2002, 141 ff.
51) BAG, decision of May 25, 2005, AP No. 13 to § 24 BetrVG 1972.
52) BAG, judgment of May 31, 1989, NZA 1990, 449 (449).
53) BAG, decision of May 25, 2005, AP No. 13 to § 24 BetrVG 1972.
54) ArbG Bochum, NZA 2006, 643 (644).
55) See Richardi/Thüsing BetrVG § 36 marginal no. 31.
56) BAG, judgment of November 12, 2002, NZA 2003, 1287 et seq. = AP No. 159 to § 112 BetrVG 1972.
57) BAG, judgment of February 13, 2007, www.bundesarbeitsgericht.de.
58) However, according to the special provision in Section 2 (5) No. 3 WissZeitVG (previously Section 57 b (4) sentence 2 No. 3), the contract term is extended by the respective full periods of leave if consent is given.
59) BAG, judgment of December 2, 1999, NZA 2000, 369 (370).

• Early termination
  • Death of the child in care
  • Birth of another child
  • Other important reason
  • Extension

• • Early termination
    Like the extension, the early termination of parental leave in accordance with Section 16 (3) sentence 1 is generally dependent on the consent of the employer, whose plans should not be thwarted without good reason. In the following constellations, however, there is a right to consent to the early termination of parental leave, which is enforceable and the assertion of which can also trigger the employer’s default of acceptance.

    • Death of the child being cared for
      Contrary to the wording of Section 16 (4), parental leave ends with the death of the child being cared for, because the essential eligibility requirement of Section 15 (1) no longer applies. However, the obligation to work (as well as the right), which then resumes, continues to be suspended for a maximum of three weeks within the grace period of Section 16 (4). The employer’s interests are safeguarded by the special right of termination in accordance with Section 21 (4) sentence 1 with regard to substitutes. The KSchG does not apply (Section 21 (5)).

If, on the other hand, the child dies before the start of parental leave but after it has been announced within the meaning of Section 16 (1), Section 16 (4) does not apply. Suspension of the employment relationship does not even occur due to premature cessation of an essential requirement for entitlement. The obligation to work remains in place, unless there is another exemption, for example for a short period in accordance with Section 616 BGB, but usually on the basis of a special agreement with the employer outside the BEEG.

The termination of parental leave after the birth of another child leads to the resumption of contractual obligations. Mothers must therefore continue to be paid during a ban on employment after childbirth in accordance with Section 11 (1) sentence 1. It would therefore be lucrative to end parental leave at the beginning of the protection period. For this reason, it should not be possible to terminate parental leave prematurely solely because of the maternity protection periods in accordance with Section 16 (3) sentence 3 (which is gender-discriminatory and therefore contrary to the ^Directive60)⁶¹.

• • • Other good cause
      Even other good cause does not justify the termination of parental leave (apart from cases of hardship within the meaning of Section 5 (1) sentence 3; also conceivable in cases of Section 1 (5)). On the other hand, the employer may not refuse consent to early termination without good reason (if, for example, no other arrangements have been made to the contrary) because the employer must also take the interests of the employee into account when making the decision as part of its duty of care.

The situation is different if the eligibility requirements for parental leave and thus the basis for the suspension have ceased to exist in the meantime (for example, after the loss of custody of the child). Nevertheless, it is unclear whether the main obligations are revived without further ado after the eligibility requirements have ceased to exist and whether the employment interest outweighs the employer’s interest in maintaining arrangements made in the meantime.

• • Extension
    Pursuant to Section 16 (3) sentence 4, there is a right to an extension of parental leave if a planned change between the beneficiaries cannot take place for good cause. In such cases, the employer must change its dispositions. An important reason in this sense is not the same as that in Section 626 (1) BGB. Rather, without an extension of parental leave, the care of the child must no longer be ensured by at least one of the ^{beneficiaries62}.

The requirement of good cause is intended to prevent the employer from being subject to arbitrary considerations when deciding which of the beneficiaries will provide childcare and care for which periods of ^time63. For example, an illness of the other entitled person that precludes care or the death of the person obliged to pay maintenance may be considered. It is irrelevant whether the reason for the extension stems from the absent caregiver or the ^child64.

It follows from the wording and purpose of the provision that the notice period in Section 16 (1) sentence 1 does not have to be observed when notifying the extension. Rather, this must be done, stating the reasons, as soon as the conditions are met. The existence of good cause cannot be delayed. The existence of good cause is therefore not supported by the fact that those entitled to parental leave do not immediately make a decision on the extension of parental leave despite being aware of the facts.

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60) The ECJ, judgment of 20 September 2007, assumes that a Finnish regulation with the same content is incompatible with Directives 76/207/EEC (equal treatment), 92/85/EEC (maternity leave) and 96/34/EC (parental leave).
61) BAG, judgment of December 4, 2002, AP No. 245 on § 611 BGB “Gratification”; Gaul/Wisskirchen, BB 2000, 2466 (2469).
62) LAG Berlin June 7, 2001 NZA-RR 2001, 625 (625).
63) ArbG Bonn, judgment of January 9, 2002, NZA-RR 2003, 14 (15.)
64) LAG Berlin June 7, 2001 NZA-RR 2001, 625 (626).

• • Retention of previous part-time employment
  • Reduction of previous working hours
    • Amicable solution

Parental leave does not have to be used exclusively for care and upbringing. Within the legally defined limits, gainful employment may be pursued during parental ^leave67. According to § 1 Paragraph 1 No. 4 (in conjunction with Paragraph 6) and § 15 Paragraph 4 Sentence 1, employment of up to 30 hours per ^week68 is permitted when receiving parental allowance and during parental leave. In the case of daycare for up to five children, the weekly working hours may even exceed 30 hours.

§ Section 15 (5) sentence 4 speaks of unchanged continuation. This leads to the conclusion that the later resumption of part-time work announced with the request for parental leave is at best possible under the requirements of § 15 (5) to (7) (= mutual agreement or legal entitlement). However, if the formal notification requirements of Section 16 (1) sentence 1 are met, there is no need for a seamless continuation, as the employer’s planning interests are satisfied in the same way as when returning after parental leave has ^ended70.

As follows from Section 15 (5) sentence 2, the legislator expects the parties to agree on the scope and location of the working hours to be reduced within four weeks of receipt of the application. If no agreement can be reached on the location of the working hours, the employer’s right to issue instructions (which may be limited according to the contractual situation and subject to collective participation rights) remains in force, which is only justiciable in terms of its fairness in accordance with Section 106 GewO in conjunction with Section 315 (3) BGB.

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67) Membership in the statutory pension insurance scheme remains in place even if the threshold of insignificance is not reached in accordance with Section 192 (1) no. 2 SGB V.
68) On dealing with fluctuation margins, see Bruns, BB 2008, 330 (331).
69) Cf. comments on the BAG judgment of 27 April 2004 (AP No. 39 on Section 15 BErzGG = NZA 2004, 1039 et seq.) by Brors in RdA 2005, 51 et seq. and Rolfs/Leder in AP No. 39 on Section 15 BErzGG.
70) BAG, judgment of April 27, 2004, AP No. 39 on § 15 BErzGG = NZA 2004, 1039 ff.
71) Joussen, NZA 2005, 336 ff.
72) Winterfeld, DB 2004, 930 (932); however, the requirements in § 15 (7) sentence 1 must then already be taken into account, in particular the waiting period, the threshold value and the reduction to a minimum weekly working time of 15 hours.
73) Leßmann, DB 2001, 94 (95).

• Procedure in case of refusal, § 15 paragraph 7
  • No. 1: Threshold value
  • No. 2: Waiting time
  • No. 5: Deadline and form
  • No. 3: Scope of reduction
  • No. 4: Reasons for refusal
  • Collective legal aspects

According to the legal constellation, the entitlement to a reduction in working hours is realized through the conclusion of a contract. Therefore, an application for a reduction in working hours must meet the requirements of Sections 145 et seq. BGB and be defined in such a way that it can be accepted by the recipient of the declaration (= employer) by a simple “yes” or it must be clear which specifications (regarding the position of working hours) are still to be left to the ^employer77

• • No. 2: Waiting period
    Section 15 (7) sentence 1 no. 2 requires at least six months of employment with the business or company (= employment relationship beginning with the commencement of employment). The extent to which interruptions in time can be disregarded can be answered analogously to the case law on the parallel issue of protection against dismissal and entitlement to continued ^{remuneration80}. It is disputed whether the waiting period must have elapsed at the time of the ^{application81} or at the start of the desired reduction in working ^hours82.
    

    • No. 5: Deadline and form
      According to Section 15 (7) sentence 1 no. 5, the reduction request must be submitted in writing with a lead time of seven weeks. According to Section 15 (7) sentence 2, it must state the start and scope of the reduced working hours. In the meantime, the highest court has ruled that the application is also possible during an already completed parental leave with full ^leave83, but that the reduction claim is due at the earliest with the declaration of the formal request within the meaning of § 16 Para. 1 Sentence ¹⁸⁴.

If continued employment during parental leave appears to be economically essential, parental leave can also be made dependent on the employer’s consent to part-time employment in accordance with the provisions of Section 15 (7) sentence. If the request is rejected, this approach, which has been approved by the Federal ^Labor Court85 , increases the chance that the urgency required in interim injunction proceedings (reason for injunction) for ordering an interim solution will be ^accepted86.

It is true that a “reduction” in working hours is conceptually difficult to imagine if the obligation to work is completely suspended during parental ^leave87. However, the starting point for the reduction claim is the individual regular contractual working time. The request for a change is therefore aimed at the scope of the contractual work obligation (temporarily suspended in whole or in part, but still ^existing88). This follows from the fact that Section 15 (7) sentence 1 no. 3 refers to a reduction in the agreed regular working ^hours89.

According to the Federal Labor Court, the fact that the reduction is linked to the contractual and not the current work obligation is supported not only by the family-specific intentions of the legislator, but also by the fact that ^external childcare is increasingly considered as the child gets older90. As a reduction in accordance with Section 15 (6) can be demanded twice, it may even be higher the second time (e.g. to 30 hours) than the first time (e.g. to 15 hours⁾⁹¹.

It has not yet been answered in case law whether a case of entitlement to a reduction in hours within the meaning of Section 15 (7) exists if a return to the scope of previous part-time work is intended during parental ^leave92. In my opinion, the fact that the employer’s disposition interests (e.g. when hiring a replacement) are not safeguarded does not argue against this, as corresponding objections can be sufficiently taken into account via Section 15 (7) sentence 1 no. ⁴⁹³.

No. 4: Reasons for refusal
Section 15 (7) sentence 1 no. 4 is of central importance for a request for part-time parental leave. According to this, a reduction in working hours can only be requested if there are no urgent operational reasons to the contrary, which must be of significantly greater weight than the “operational reasons^“ within the meaning of Section 8 (4) sentence 1 TzBfG that oppose a request for part-time^work94. The employer bears the burden of substantiation and ^proof95 for the assertion of such reasons.

If the employer wishes to reject a request for part-time work, it must do so in writing within four weeks of receiving the request in accordance with Section 15 (7) sentence 4. However, if the employer misses the deadline or fails to comply with the written form requirement, consent is not deemed to have been given, unlike under Section 8 (5) sentences 2 and 3 TzBfG. Instead, claims must be enforced in court (if necessary by way of interim legal ^protection96). Whether the employer is precluded from making new submissions is a different ^question97.

Organizational concept
Considering that the Federal Labour Court only recognizes conflicting operational reasons within the framework of Section 8 (4) TzBfG if an entrepreneurial organizational concept requires a different working time arrangement, the concept is actually implemented in the specific case and the desired working time entails a significant impairment of the work organization, the work process or a disproportionate economic burden, the employer’s burden of proof is already high.

With regard to the provision of Section 1a of Annex 5 to the AVR Caritas, which is modeled on Section 15 (7) sentence 1 no. 4, the Federal Labour Court has ruled that conflicting operational obstacles are only urgent if they are of such considerable weight that they are ^compelling98. Since the employer can determine the position of the remaining working time in case of doubt, it must examine all organizational possibilities in relation to a possible total ^absence99.

Conflicting operational reasons may be considered urgent if the volume of work previously performed by the person entitled to parental leave is still required to an undiminished extent and cannot be divided up, or if a replacement employee is already under ^contract100. The former is conceivable in the case of project-related and indivisible activities (e.g. employment on external construction sites, day trips in the haulage industry, continuous customer ^advice101).

Lack of employment opportunities
In contrast to indefinite reduction claims such as those under Section 8 TzBfG, the situation may arise in the case of parental part-time work requests where the employment relationship remains unaffected but there are (temporarily) no employment opportunities. In such cases, the reduction request is not prevented by an organizational concept or operational disruptions, but by a surplus of personnel. Employment should be unreasonable for the employer if this would be the case when measured against the requirements of Section 1 (2) ^KSchG102.

An application that is only submitted during parental leave with complete suspension is therefore regularly precluded by urgent operational reasons if a parental leave replacement has been hired and this person, as well as other comparable employees, have refused a temporary reduction in their working hours at the request (!) of the ^employer103. The employer’s special right of termination pursuant to Section 21 (4) is not relevant here, as the parental leave does not end.

The employer can also only oppose the desired distribution of working hours. Although only the reduction and not the location of working hours can be enforced in accordance with Section 15 (7), the Federal Labor Court has also ruled with regard to the remaining right to issue instructions in this respect that the desired distribution of working hours can only be opposed for weighty operational reasons that are measured against the interests of the ^employee104.

Due to the contractual nature of the part-time entitlement, a request for a reduction in working hours that also extends to the distribution of working hours can only be accepted or rejected ^uniformly105. This means that opposing urgent operational reasons can also be based exclusively on the desired position of working ^hours106. A request for a reduction should therefore also be based on this aspect and, if necessary, be accompanied by variants.

Change in the situation
If an opposing reason in favor of the request for part-time work no longer applies, another application will probably have to be submitted and a new decision made. If, on the other hand, a relevant reason subsequently arises, the only option from the employer’s point of view is a (change of) notice of termination, as the part-time parental employment is based on a contractual amendment. In addition, the occurrence of a condition subsequent is sometimes assumed in favor of the employer instead of the necessity of ^{termination107}.

It is disputed whether, after an initial full leave of absence and later reintegration into the company within the framework of a part-time parental employment relationship, there is a (subsequent) employment within the meaning of Section 99 BetrVG. The Federal Labor Court has assumed this to be the ^case109, but ruled on the old legal situation, according to which the BErzGG did not provide for a legal entitlement to part-time parental leave and the employer’s unrestricted freedom of disposition in this respect was still subject to the works council’s right of co-determination.

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74) Gaul/Wisskirchen, BB 2000, 2466 (2468); however, the BAG, judgment of May 9, 2006, NZA 2006, 1413 (1416 f.), more on this under C I 2 b ee.
75) BAG, judgment of April 19, 2005, AP No. 44 on § 15 BErzGG = NZA 2005, 1354 (1356); restricting this to the effect that the reduction request must also be made at the same time as the announcement of parental leave: Peters-Lange/Rolfs NZA 2000, 682 (686) and Rolfs/Lange, comment on BAG, judgment of April 27, 2004, AP No. 39 on § 15 BErzGG.
76) BAG, judgment of May 9, 2006, AP No. 47 on § 15 BErzGG = NZA 2006, 1413 et seq.
77) BAG, judgment of April 19, 2005, AP No. 44 on § 15 BErzGG = NJW 2006, 1832 et seq.
78) Gaul/Wisskirchen, BB 2000, 2466 (2467); Peters-Lange/Rolfs NZA 2000, 682 (686), on the other hand, only want to consider part-time employees in accordance with § 23 (1) sentence 4 KSchG on the basis of quotas.
79) ErfK-Dörner § 15 para. 14.
80) ErfK-Dörner § 15 para. 14.
81) Lindemann/Simon, NJW 2001, 258 (261) with reference to the start of the waiting period in § 1 para. 1 KSchG.
82) Buchner/Becker, § 15 BErzGG para. 47: Time of realization of the claim.
83) BAG, judgment of May 9, 2006, NZA 2006, 1413 ff = AP No. 47 to § 15 BErzGG.
84) BAG, judgment of June 5, 2007, NZA 2007, 1352 (1354 f.); see §15 (6): “during” the entire duration of parental leave.
85) BAG, judgment of June 5, 2007, NZA 2007, 1352 (1355); a.A. Leßmann, DB 2001, 94 (96).
86) Cf. ArbG Hamburg NZA-RR 2006, 239 (240).
87) Lambrich, BB 2006, 557 (557).
88) BAG, judgment of April 19, 2005, AP No. 44 on § 15 BErzGG = NZA 2005, 1354 (1357).
89) BAG, judgment of May 9, 2006, NZA 2006, 1413 (1415).
90) BAG, judgment of May 9, 2006, NZA 2006, 1413 (1415 f.).
91) BAG, judgment of May 9, 2006, NZA 2006, 1413 (1415).
92) BAG, judgment of April 27, 2004, AP No. 39 on § 15 BErzGG = NZA 2004, 1039 et seq.
93) Brors, RdA 2005, 51 (54) and Rolfs/Leder, comment on the judgment of the BAG of April 27, 2004, AP No. 39 on § 15 BErzGG.
94) Peters-Lange/Rolfs NZA 2000, 682 (686 f.).
95) BAG, judgment of June 5, 2007, NZA 2007, 1352 (1356); judgment of May 9, 2006, NZA 2006, 1413 (1416).
96) Cf. Lindemann/Simon, NJW 2001, 258 (261).
97) More on this under C I 2 cc.
98) BAG, judgment of May 18, 2005, NZA 2005, 108 (112); see also the judgment of June 5, 2007, NZA 2007, 1352 (1355 f.)
99) Peters-Lange/Rolfs NZA 2000, 682 (686f.); Gaul/Wisskirchen, BB 2000, 2466 (2468) even demand that, in case of doubt, another (even less valuable) job must be assigned.
100) BAG, judgment of June 5, 2007, NZA 2007, 1352 (1356).
101) See LAG Hamm, judgment of February 15, 2006, juris para. 40 ff.
102) BAG, judgment of June 5, 2007, NZA 2007, 1352 (1356); LAG Schleswig-Holstein, judgment of March 1, 2007, juris para. 34 ff.
103) BAG, judgment of April 19, 2005, AP No. 44 on § 15 BErzGG = NZA 2005, 1354 (1358): no obligation to give (amended) notice.
104) BAG, judgment of May 9, 2006, AP No. 47 on § 15 BErzGG = NZA 2006, 1413 (1416 f.).
105) LAG Munich, judgment of April 24, 2007, at juris para. 31 f.
106) Leßmann, DB 2001, 94 (97).
107) Leßmann, DB 2001, 94 (95); in contrast Buchner/Becker, § 15 BErzGG para. 49.
108) Gaul/Wisskirchen, BB 2000, 2466 (2468).
109) BAG, decision of April 28, 1998, NZA 1998, 1352 (1352).

Since (in contrast to Section 8 (5) sentence 2 TzBfG) the employer’s consent is not deemed to have been given if the employer does not respond to the request for part-time work, the procedural assertion is always aimed at a judicial replacement of the ^consent111. The admissibility of such an action depends, among other things, on whether an application has been made that satisfies the requirement of certainty set out in Section 253 (2) no. 2 ZPO. The enforcement of the parental part-time work claim must therefore focus on this in the labor court proceedings,

d. order the defendant to agree to the reduction of the contractual working hours requested by the plaintiff from …. to …. hours per week for the period from …. to …. with the proviso that the weekly working hours are distributed as follows: ….

It is disputed whether and to what extent the employer is to be excluded in the process with the submission of conflicting reasons that it did not assert or did not assert in good time. In some cases, a breach of the requirement to state reasons is considered to have no ^{consequences112}. Others deny the invocation of reasons that were not submitted in due form or ^time113. Since the Federal Labor Court appears to be satisfied with the naming of the essential core of the grounds for obstruction, it has so far been able to leave the question ^undecided114.

As the parental part-time entitlement is limited in time, unlike general part-time entitlements, a judgment can sometimes only replace the requested consent after the intended period for which part-time work has been requested has expired (see Section 894 (1) sentence 1 ZPO: with legal force). Nevertheless, in the opinion of the Federal Labor Court, the need for legal protection does not cease to exist, as claims from the aspect of default of acceptance (Section 615 sentence 1 BGB) may depend on the ^decision115.

Even with regard to the desired distribution of the remaining working hours, the retroactive effect of the conclusion of the contract does not eliminate the need for legal protection because, according to the reform of the law of obligations pursuant to Section 311 a (1) BGB, contracts aimed at impossible performance are effective and (compensation) claims are ^{conceivable116}. However, it remains unclear why the Federal Labor Court only requires a change from a claim for performance to a claim for a declaratory judgment with regard to the position of working ^hours117.

It is highly controversial whether a provisional court decision by way of an interim injunction is permissible. On the one hand, the question arises, particularly in the case of a time-limited request for parental part-time work, of anticipation of the main issue by final satisfaction of the claim ^asserted118. Secondly, the objection is raised that it follows from sections 894 and 895 ZPO that the fictional effect pursuant to section 894 (1) sentence 1 ZPO ^presupposes a legally binding decision in ordinary proceedings119.

In contrast, case law contains a number of decisions that do not rule out provisional legal protection for part-time work ^claims120. The need for provisional decisions has also been recognized for constellations in which a request for parental leave is made dependent on the employer’s consent to a reduction in working hours for economic ^reasons121.

Since interim legal protection proceedings are only intended to create a provisional and not a final legal situation, they are aimed at this (possibly in conjunction with further auxiliary applications),

d. The court ordered the applicant to agree to a reduction in the applicant’s working hours from . working hours from …. to …. weekly hours from …. until the final decision in the main action, subject to the proviso that the weekly working hours are distributed as follows: ….

Finally, with regard to (two-stage) preclusive periods, it should be considered whether the claim for remuneration is also deemed to have been asserted with the application for a judgment on (partial) employment. Since the decision of the Federal Labor Court that the filing of an action for unfair dismissal simultaneously constitutes the assertion of claims arising from default of acceptance and that the motion to dismiss is a sufficiently clear rejection of such ^claims122, the question is no longer merely academic.

It is disputed whether the parental part-time entitlement supersedes general part-time entitlements. However, due to the different requirements, the Federal Labor Court assumes that the claims are in free ^{competition124}. If it is not made clear on which legal basis the reduction request is based, this must be clarified in the necessary negotiations or subsequently determined by way of interpretation from the circumstances (time of the request, scope of the requested reduction and its duration).

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110) BAG, judgment of April 19, 2005, AP No. 43 on § 15 BErzGG = NJW 2006, 1832 et seq.
111) Leßmann, DB 2001, 94 (99).
112) LAG Baden-Württemberg, judgment of November 23, 2006, juris para. 48 et seq.; Leßmann, DB 2001, 94 (99).
113) Buchner/Becker, § 15 BErzGG para. 53; Gaul/Wisskirchen, BB 2000, 2466 (2468) fall back on an analogy to § 22 para. 3 BBiG and § 5 para. 3 sentence 2 MuSchG.
114) BAG, judgment of June 5, 2007, NZA 2007, 1352 (1357).
115) BAG, judgment of May 9, 2006, NZA 2006, 1413 (1414).
116) BAG, judgment of May 9, 2006, NZA 2006, 1413 (1416).
117) BAG, judgment of May 9, 2006, NZA 2006, 1413 (1416).
118) Leßmann, DB 2001, 94 (99).
119) Peters-Lange/Rolfs NZA 2000, 682 (686).
120) Very instructive: LAG Hamburg, judgment of September 4, 2006, NZA-RR 2007, 122 (123 f.).
121) ArbG Hamburg, judgment of August 10, 2005, NZA-RR 2006, 239 (240).
122) BAG, judgment of April 26, 2006, AP No. 188 on § 4 TVG “Exclusion periods” = NZA 2006, 845 et seq.
123) In detail on this: Rudolf/Rudolf, NZA 2002, 602 et seq.; Hannewald, NZA 2002, 1385 et seq.
124) BAG, judgment of May 8, 2007, AP No. 21 on Section 8 TzBfG = NJW 2007, 3661 et seq.

§ Section 15 (4) sentence 4 imposes an obligation on the employer to provide reasons in addition to the deadline and form ¹²⁶. It follows from the requirement to state reasons that the employee’s application must specifically state the envisaged activity. Otherwise, there is no basis for deciding whether urgent operational ^reasons127, usually confidentiality or competitive interests or the need for manpower in the employee’s own ^company128, speak against the professional activity.

It is questionable whether the employer’s consent must also be obtained in the absence of a formal or unfounded refusal. The Federal Labor Court sees the construction of Section 15 (4) sentences 3 and 4 as a temporary prohibition with a reservation of permission (statutory exclusion period), so that the employer’s right of refusal expires after fruitless expiry and its consent is no longer ^required129. A judicial replacement of the consent is then superfluous; there would be no need for legal protection.

It is therefore permissible to take up employment elsewhere after a lacking or incorrect refusal by the employer. Consequently, even if the employer’s refusal is made in due time and form and is accompanied by specific reasons but is unfounded, it would be necessary to waive the right to a court order granting ^consent130. In these cases, however, it is predominantly argued that the employer’s consent is required and may have to be enforced in ^court131.

Since the taking up of other employment contrary to a justified, timely and formal refusal constitutes a breach of contract relevant to a warning and termination, which can also result in injunctive relief and claims for damages on the part of the employer, particularly in the event of a breach of a non-competition clause, there is much to suggest that, at least in the case of a formally proper refusal, a judicial substitution of consent (if necessary in summary ^{proceedings132}) should be pursued.

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125) See Joussen, NZA 2003, 644 ff
126) BAG, judgment of June 26, 1997, AP No. 22 on § 15 BErzGG.
127) See Joussen, NZA 2003, 644 (645 ff.).
128) Peters-Lange/Rolfs NZA 2000, 682 (686 f.).
129) BAG, judgment of June 26, 1997, AP No. 22 on § 15 BErzGG = NZA 1997, 1156 ff.
130) ErfK-Dörner § 15 para. 22f..
131) LAG Düsseldorf, judgment of July 2, 1999, NZA-RR 2000, 232 (232) with further references; Buchner/Becker BErzGG § 15 para. 39; Joussen, NZA 2003, 644 (648) with reference to parallels in vacation law.
132) Another employer is unlikely to keep the job vacant until the legally binding conclusion of the proceedings in the main action.

• Existence of the vacation entitlement
• Reduction in vacation
  • Scope of reduction
  • Shortening declaration

• Transfer of vacation
• Vacation pay

• • • Reduction of vacation leave in paragraphs 1 and 4, whose
    • transfer in paragraph 2 and with regard to the
    • Vacation pay in paragraph 3

the general provisions of Sections 3 and 5 (3) and Section 7 (3) and (4) BUrlG.

According to the case law of the Federal Labor Court, the entitlement to paid (statutory minimum) leave is limited to the respective calendar year in view of the statement in Section 7 (3) sentence 1 BUrlG and expires irretrievably after the end of the calendar year for which it arises. Even in connection with parental leave, the existence of leave entitlement initially depends on whether leave could have been granted in kind for the year in ^question133.

If previous part-time employment is maintained, the right to reduction pursuant to Section 17 (1) sentence 2 is excluded because the employee is released from the reduced work obligation and can therefore actually take leave. Permitted activities pursuant to Section 15 (4) outside the suspended employment relationship, on the other hand, do not affect the right of reduction. In the part-time employment relationship with another employer, the statutory and contractual entitlements arise there.

However, if more leave has been granted before the start of parental leave than would have been claimed if the employer had exercised its right to reduce leave in accordance with Section 17 (1) sentence 1, it is not possible to reduce the leave already taken for factual reasons. However, if leave has been granted in excess of the remaining amount within the meaning of paragraph 1, the employer may, in accordance with § 17 paragraph 4, reduce the leave to which the employee is entitled after the end of parental leave by the excess days granted.

If the employment relationship ends during or at the end of parental leave, there is no scope for a retrospective reduction of excess leave granted. A reclaim based on the right to enrichment is also out of the question. The granting of leave prior to parental leave was legally justified, as the leave entitlement had arisen and was due in this amount. The legal basis cannot cease to exist retroactively either, because the BEEG does not permit a retroactive reduction of leave already granted, but only offsetting against future leave.

• • Declaration of reduction
    The reduction of leave does not take place by law, but by means of a declaration by the employer (which must be received), which can also be based on conclusive ^conduct135. The employer does not have to make use of the right granted to him by law and does not have to declare the reduction at a specific point in time. It can leave the duration of the entitlement as it is at the start of parental leave. However, the principle of equal treatment must be observed when exercising the right of reduction.

The employer can make the declaration before the start of parental leave, although it is still unclear whether this is permissible (for example in the employment contract) before parental leave is announced. The employer can make the declaration during and after parental ^leave136, even if the employment relationship is not to be continued after parental leave. The reduction, which then only affects the leave compensation in accordance with Section 17 (3), can even be declared in response to an action for ^{compensation137}.

The right to reduce leave expires if the employer grants leave for the first time after resuming work to the extent by which it could have reduced the newly acquired leave entitlement. This is because, on the one hand, the employer can waive the reduction and, on the other hand, in accordance with Section 17 (4), only reduce the leave entitlement that arises after the end of parental leave. This also precludes the employer from asserting its right to reduce leave only in the year following the employee’s return.

Upon receipt of the notice of reduction, the part of the vacation entitlement that had accrued in accordance with §§ 3, 4 and § 5 BUrlG or corresponding (collectively agreed) contractual provisions expires. This part of the leave does not have to be granted and cannot be transferred or compensated. However, there is no uniform answer to the question of whether the fractions of vacation days resulting from a reduction should be rounded to full days by analogy with § 5 para. 2 ^BUrlG138 or ^not139.

• • Transfer of leave
    If the leave accrued before the start of parental leave (including special statutory leave) has not been taken or has not been taken in full, the employer must grant the remaining leave after parental leave in the current or next leave year in accordance with Section 17 (2). In this respect, the linking of the leave entitlement to the calendar year or to the carry-over period as set out in Section 7 (3) sentence 1 BUrlG is broken and its expiry, which in itself occurs periodically, is postponed.

A period of at least one year and one day (end of parental leave at the end of December 30) and a maximum of one year and 364 days (parental leave ends at the end of January 1) is defined as the current and the next leave year. The entitlement only expires at the end of the next but one leave year, even if it was not possible to take time off work until the end of the carry-over period due to ongoing illness, prohibition of ^{employment140} or subsequent new parental ^leave141.

The transfer itself does not require the cooperation of the parties to the employment contract. Like the transfer within the meaning of Section 7 (3) BUrlG, it takes place by operation of ^law142. The extended transfer period to which the remaining leave is transferred depends on the duration and end of the parental leave. The question of whether and, if so, how leave entitlements that arise in the interruption periods of parental leave divided into several periods are transferred cannot be answered ^reliably143.

The leave entitlement is transferred to the extent that it still exists at the beginning of parental leave and could have been taken until the end of the existing time ^limit144. This applies even if the remaining leave could only (partially) not be taken because and to the extent that an employee was subject to the employment prohibitions of the MuSchG. New leave that only arises after parental leave remains limited to the current leave year because it is again subject to the provisions of the BUrlG.

• • Vacation compensation
    According to Section 7 (4) BUrlG, vacation that can no longer be granted in whole or in part due to termination of the employment relationship must be compensated. This presupposes that the termination as such is the cause of the impossibility of granting the leave by release from the obligation to work. Compensation is therefore only permissible if the leave could still have been taken in kind during the relevant period in a notionally continuing employment relationship and had not already expired due to the passage of time.

Leave compensation in connection with parental leave is also based on these provisions. According to Section 17 (3), the employer must compensate for leave not yet granted if the employment relationship ends during parental leave or is not continued following parental leave. At the time of termination, a claim for compensation arises in the amount of the transferred leave entitlement (possibly reduced in accordance with Section 17 (1) or (4)¹⁴⁵) within the meaning of Section 17 (2) as its surrogate.

The compensation for statutory minimum leave can be claimed without restriction during the entire fixed-term period specified in Section 17 (2). The parties to the collective agreement do not have the authority to shorten the period because the surrogate for the compensation, like the statutory leave entitlement itself, is not subject to disposition in accordance with Section 13 (1) sentence 1 BUrlG. Only an entitlement that exceeds the statutory minimum leave is subject to collective agreement preclusive ^periods146.

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133) BAG, judgment of April 23, 1996, NZA 1997, 44 (44).
134) For example, additional leave for severely disabled persons pursuant to § 125 SGB IX or for young people pursuant to § 19 JArbSchG.
135) BAG, judgment of July 28, 1992, NZA 1994, 27 (28).
136) BAG, judgment of July 28, 1992, NZA 1994, 27 (28).
137) BAG, judgment of April 23, 1996, NZA 1997, 44 (44).
138) For example, Buchner/Becker BErzGG § 17 para. 16.
139) For example, ErfK-Dörner § 17 BErzGG para. 7.
140) BAG, judgment of April 23, 1996, NZA 1997, 44 (44).
141) BAG, judgment of October 21, 1997, NZA 1998, 648 (648); LAG Schleswig-Holstein, judgment of October 21, 2004 – 4 Sa 346/04 -; Sowka NZA 1998, 347 (348).
142) BAG, judgment of January 25, 1994, AP No. 16 on § 7 BUrlG.
143) On the parallel problem in § 17 (2), which is modeled on § 17 sentence 2 MuSchG: Friese, NZA 2003, 597 (602).
144) BAG, judgment of October 1, 1991, NZA 1992, 419 (420).
145) BAG, judgment of July 28, 1992, NZA 1994, 27 (28).
146) BAG, judgment of April 23, 1996, AP No. 6 on § 17 BErzGG.

• Material scope
• Individual range
  • Former full-time employees
  • Part-time employees
    • Part-time employment during parental leave
    • Part-time employment without parental leave
    • Part-time employment with third parties

While an employment relationship can be terminated by the employee at any time subject to the individual notice period, but only with a notice period of three months at the end of parental leave in accordance with Section 19, termination by the employer in accordance with Section 18 (1) sentence 1 is only permitted with official approval from the point in time from which parental leave was requested, but no more than eight weeks before the start of parental leave and during parental leave.

The ban on dismissal in Section 18 flanks the entitlement to parental leave and is in addition to the other protection against dismissal. The eight-week prior effect of the protection against dismissal is intended to prevent the assertion of parental leave from being used as a reason for dismissal by the employer.

§ Section 18 does not preclude the termination of the employment relationship or changes to the terms and conditions of employment by means other than termination or notice of change (= unilateral declaration of change) by the employer. Official approval is not required for the exercise of a right to withdraw from void employment contracts, for rescission, for termination due to the expiry of a fixed term or the effect of a resolutory condition, nor for the conclusion of a termination agreement or in the case of self-termination.

The prohibition of termination is mandatory. A termination declared in violation of the prohibition is null and void in accordance with Section 134 ^BGB148. This applies to any dismissal by the employer, regardless of whether it is declared as an ordinary or extraordinary dismissal, as a termination or change notice, or whether it takes place on the occasion of a mass dismissal. A dismissal that violates the prohibition of dismissal cannot be reinterpreted as a dismissal with effect from the end of parental leave in accordance with Section 140 BGB.

The prohibition in Section 18 (1) sentence 1 does not prevent termination before the start of the statutory protection period, so that no official approval is required in accordance with Section 18 (1) sentence 2. However, if there is a direct temporal connection to an imminent parental leave, there is a factual presumption that the dismissal was given exclusively because of the exercise of the right to parental leave and thus violates the prohibition of reprimands under Section 612 a ^BGB149.

In this context, it was already disputed under the previous regulation whether the special protection against dismissal depends on the part-time work not exceeding the maximum of 30 hours per week that entitles the employee to parental allowance and parental leave pursuant to Section 15 (4) sentence 1. From the fact that Section 18 (2) has always not specified such a maximum limit, it has been concluded in some cases that the protection against dismissal also applies to part-time work to an extent detrimental to parental ^leave151.

However, in the cases of Section 18 (2) No. 2, i.e. part-time work without parental leave, protection against dismissal is expressly dependent on there being an entitlement to parental allowance during the reference period. Part-time work in excess of the permitted 30 hours per week is therefore contrary to the special protection against dismissal, because an entitlement to parental allowance in accordance with Section 1 (1) No. 4 and (6) only exists for those who are not or not fully employed.

From the fact that Section 18 (2) No. 2 merely aims to put part-time employees on an equal footing with full-time employees, without otherwise extending the conditions for enjoying the special protection against dismissal under Section 18, it can therefore be concluded that the special protection against dismissal under Section 18 (1) also depends on the permissible scope of part-time employment not being exceeded during parental ^leave152.

It is disputed whether the special protection against dismissal pursuant to Section 18 (2) only extends to the employment relationship in its form before the start of parental leave or also to current part-time ^{employment153}. There is no consensus as to whether the part-time agreement with the previous employer merely leads to a temporary change in the previous employment relationship or whether it establishes an additional, legally independent (part-time) employment ^{relationship154}.

While the dormant full-time employment relationship and the completed part-time employment relationship ^are sometimes regarded as two legally independent contractual ^{relationships155}, it is also argued that they are in any case a uniform and inseparable contractual structure if they are only modified with regard to working ^hours157. In independent employment relationships, the working conditions of the part-time employment relationship are likely to differ from those of the dormant full-time employment relationship in compliance with Section 4 (1) TzBfG.

Weighing up the employee’s interests in the protection of continued employment on the one hand and the justified operational interests on the other, it can be assumed in case of doubt that the original employment relationship is completely suspended during parental leave and that the part-time employment contract establishes an independent employment relationship which, within the framework of the applicable law, may contain different working conditions than the full-time employment relationship suspended due to parental leave.

If, on the other hand, one always assumes a uniform employment relationship that is only partially suspended by the part-time agreement, the prohibition of dismissal in Section 18 rules out a termination or change notice by the employer, even with regard to part-time employment without official approval, because in addition to the termination notice, a unilateral change to the working conditions of the part-time employment relationship that is not covered by the right to issue instructions would also have to be measured against the special protection against dismissal.

However, the question arises as to why part-time employees without parental leave should be in a worse position than those protected by Section 18 (1) and (2) No. 1. Ultimately, Section 18 (2) No. 2 also underpins the prohibition of discrimination in Section 4 (1) TzBfG. It is therefore likely to continue to be criticized that the special protection against dismissal should not also apply to part-time employees within the meaning of Section 18 (2) No. 2 for a period of up to three years.

Under the previous provision in Section 18 (2) no. 2 BErzGG, the duration of protection against dismissal was still linked to the potential 24-month entitlement to child-raising allowance. The fact that a reduction to 14 months is now intended by the legislator is evident from the transitional provision in § 27 (3), which, in conjunction with § 27 (1), still determines the old legal situation as decisive for all cases in which a child was born before January 1, 2007 or was taken in with the aim of adoption.

Ultimately, the shortening of the special protection against dismissal for all part-time employees who do not take parental leave is not a real disadvantage compared to those who take parental leave as part-time employees or on full leave, because in accordance with Section 15 (5) sentence 4, there is still the possibility of registering for parental leave while maintaining part-time employment and thus obtaining protection against dismissal in accordance with Section 18 (2) no. 1.

The employer usually has no knowledge of the special protection against dismissal at the time of termination within the scope of application of Section 18 (2) No. 2 (particularly in the case of fathers or in connection with adoptions). Since, in contrast to Section 9 MuSchG, knowledge is also not important, the unanimous view is that there is an obligation to disclose after receipt of the notice of termination. The law makes no statement as to when the invocation of special protection against dismissal is forfeited. It is therefore disputed within which period a notification must be made.

A corresponding application of Section 16 (5), which suggests an obligation to notify without delay, is contradicted by the fact that this provision does not serve the interests of the employee, but solely the interests of the employer. The view that the notification period borrowed from the case law of the Federal Labor Court (now ^three weeks159 and previously ^one month160 ) from the law on severely disabled ^persons161 is not applicable is probably contradicted by the fact that it is itself based on an analogy.

While a solution that does justice to the specific individual case is occasionally ^demanded162, the Berlin Regional Labor Court uses the two-week period of § 9 (1) sentence 1 MuSchG, which served the legislator as a model for § 18 and therefore appears to be the most ^{appropriate163}. This view is also likely to prevail in case law. Due to the unclear legal situation, however, it is absolutely advisable to invoke the special protection against dismissal without delay.

§ Section 18 (2) BErzGG required a part-time employment relationship with “his” (the employee’s) employer under both No. 1 and No. 2. Therefore, no special protection against ^dismissal164 applied to the employment relationship with another employer. § Section 18 (2) BEEG, on the other hand, only refers to work for the “same” employer in No. 1. The protection against dismissal under no. 2 during the period of parental allowance (i.e. for up to 14 months) therefore extends to all employment relationships, provided that no parental leave is taken.

It remains questionable whether the special protection against dismissal generally ceases to apply (i.e. also with the previous employer) if the working hours with another employer exceed the permitted 30 hours per week. This will probably have to be answered in the affirmative because Section 18 (1) sentence 1 is based on the fact that parental leave has been requested or has already begun. According to Section 15 (4) sentence 1, parental leave requires that simultaneous part-time employment does not exceed a regular weekly working time of 30 hours.

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147) On the influence on social selection: ArbG Bochum, NZA 2006, 643 (643).
148) BAG, judgment of March 11, 1999, NZA 1999, 1047 (1047).
149) Cf. LAG Lower Saxony, judgment of September 12, 2005, NZA-RR 2006, 346 (348 f.).
150) BAG, judgment of March 27, 2003, AP No. 6 on § 18 BErzGG; judgment of March 11, 1999, AP No. 4 on § 18 BErzGG.
151) Halbach, DB 1986, Supplement 1, 1 (14); Schleicher, BB 1986, Supplement 1, 1 (9).
152) ErfK/Kiel § 18 BErzGG marginal no. 6.
153) Betz NZA 2000, 248, (250 f).
154) ErfK/Kiel § 18 BErzGG marginal no. 6. 7.
155) For example, with the consequence that waiting periods must be taken into account: § Section 1 (1) KSchG, Section 3 (3) EntgeltfortzahlungsG.
156) BAG – 10th Senate -, judgment of June 28, 1996, NZA 1996, 151 (153) probably tends in this direction; in any case, affirming a “hiring” within the meaning of § 99 BetrVG in the event that the part-time work was not taken up immediately at the beginning of parental leave, BAG – 1st Senate – decision of April 28, 1998, NZA 1998, 1352; on the whole: Sowka BB 2001, 2335 and Köka/Schiefer/Überacker DB 1994, 2341 (233). Senate -, decision of April 28, 1998, NZA 1998, 1352; on the whole: Sowka BB 2001, 935, 937 and Köster/Schiefer/Überacker, DB 1994, 2341 (2342)
157) BAG, judgment of April 23, 1996, NZA 1997,160 (162); Sowka NZA 1998, 347 (349); Ramrath, DB 1986, 1785 (1786).
158) The fact that the payment period for parental allowance can be extended to up to 28 months pursuant to § 6 sentence 2 does not extend the protection against dismissal beyond the child’s 14th birthday because § 18 (2) no. 2 expressly refers to the reference period pursuant to § 4 (1).
159) BAG, judgment of January 12, 2006, NZA 2006, 1035 (1037); so already Etzel in: Festschrift Arbeitsgemeinschaft Arbeitsrecht im Deutschen Anwaltsverein 2006, 241 (254).
160) BAG, judgment of May 14, 1982 AP No. 4 on § 18 SchwbG; BAG, judgment of January 16, 1985 AP No. 14 on § 12 SchwbG.
161) Halbach DB 1986, Beil. 1 p. 1 (14f.).
162) Buchner/Becker § 18 para. 38.
163) LAG Berlin BB 2006, 672 (LS).
164) BAG, judgment of February 2, 2006, AP No. 10 on § 18 BErzGG; still left open in BAG, judgment of March 27, 2003, AP No. 6 on § 18 BErzGG.

The special protection against dismissal begins on the day on which parental leave is effectively requested, but at the earliest eight weeks before it begins (which is particularly important for fathers and those wishing to adopt) and, in the case of Section 18 (2) No. 2, on the earliest date on which it could have begun. The request in the knowledge of an imminent termination is not abusive as ^such165. If parental leave is divided into several periods, the upstream protection against dismissal only applies to the first ^period166.

There is no special protection against dismissal in the periods between parental ^leave167. Section 18 also does not provide protection against dismissal with retroactive effect beyond the end of parental leave; however, a dismissal declared in the temporal context of parental leave may suggest a violation of the prohibition of reprimands under Section 612 a ^BGB168. If there is still a residual entitlement to parental leave that is to be taken up in a subsequent employment relationship, the prohibition of dismissal in Section 18 applies in accordance with the above ^{provisions169}.

The ban on dismissal ends at the same time as parental leave, i.e. usually at the end of the day before the child’s third birthday. Early termination in agreement with the employer in accordance with Section 16 (3) means that the protection ceases to apply at the end of parental leave. If parental leave is extended within the time frame specified in Section 15 (2), which also requires the employer’s consent, the prohibition on dismissal also extends to the additional parental leave.

From a legal perspective, parental leave ends immediately upon the death of the child due to impossibility, because the eligibility requirements no longer apply. During the maximum three-week grace period granted under Section 16 (4), however, the special protection against dismissal will probably still have to be accepted because the legislator has established the fiction that parental leave ends no later than three weeks after the child’s death.

Since Section 18 constitutes a statutory prohibition within the meaning of Section 134 BGB, a termination declared without prior (not necessarily ^final171) approval is null and void. This applies even if the employer would have a legal claim to the granting of a permit in accordance with Section 18 (1) sentence 2, but this has not been applied for or has not (yet) been granted. Due to Section 182 (3) in conjunction with Section 111 sentences 2 and 3 ^BGB172, a notice of termination should always be accompanied by a copy of the (approving) decision.

As Section 18 (1) sentence 2 states, dismissal may be declared permissible in special cases. The requirements for this are specified in the General Administrative Regulation on Protection against Dismissal during Parental Leave printed in the appendix. Although administrative regulations do not have the quality of legal norms, in practice they bind the discretion of the relevant authorities. The administrative regulations do not regulate the special cases conclusively, but rather by way of example (“in particular”).

The determination of a special case does not give the employer a legal right to a declaration of admissibility. Rather, this merely gives the authority a discretion to be exercised in accordance with Section 40 VwVfG, in the context of which it must be determined whether the employer’s interest in a termination during parental leave outweighs the employer’s interest to such an extent that the termination intended by the employer must be declared admissible as an ^exception173.

The General Administrative Provisions merely provide the relevant authorities with internal instructions without directly giving rise to rights or obligations for those affected. In administrative proceedings, they can at best claim that their fundamental right to equal treatment under Article 3(1) of the Basic Law has been violated by an unjustified deviation from the usual administrative practice set out in the administrative regulations.

While the labor courts examine the legality of a dismissal taking into account all aspects introduced into the process, in the approval procedure the examination is carried out exclusively according to specific administrative law requirements. The competent authority may therefore not refuse a declaration of admissibility on the grounds that there has been a transfer of ^{undertakings174} because of the dispute as to whether a business has been closed down or has changed hands in the course of a transfer of undertakings.

Like Section 9 (3) MuSchG, the provision in Section 18 contains a prohibition on dismissal with a reservation of permission. Both prohibitions can overlap during the (renewed) maternity protection periods. Since a “special case” follows different legislative intentions despite the comparable wording of Section 18 (1) sentences 2 and 3 and Section 9 (3) MuSchG, official approvals must be obtained in accordance with both provisions during ongoing maternity protection periods (Article 6 (4) GG)¹⁷⁵.

It should also be borne in mind that Section 9 MuSchG is intended to take into account the special physical and psychological situation of women during pregnancy and mothers shortly after giving birth. In addition, the ban on dismissal under Section 9 MuSchG (approx. 13 months) is significantly shorter than that under Section 18 (up to 36 months), so that the employer can be expected to continue the employment relationship until the end of the grace period sooner than during parental leave.

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165) LAG Lower Saxony, judgment of July 2, 2004, NZA-RR 250 (251).
166) LAG Berlin, judgment of December 15, 2004, NZA-RR 2005, 474 (475); Buchner/Becker § 18 para. 12; Sowka NZA 1994, 102 (105).
167) Buchner/Becker § 18 para. 16.
168) In my opinion, ArbG Bochum, NZA 2006, 643 (644) goes too far.
169) BAG, judgment of March 11, 1999, NZA 1999, 1047 (1048).
170) See in detail: APS-Rolfs § 18 BEEG para. 25.
171) BAG, judgment of January 20, 2005, AP No. 8 on Section 18 BErzGG; KR-Bader Section 18 BEEG para. 35.
172) For details see: Staudinger-Gursky Section 182 para. 46 ff.
173) APS-Rolfs § 18 BEEG para. 24.
174) OVG Nordrhein-Westfalen, judgment of March 31, 2000, AP BerzGG § 18 No. 5.
175) BAG, judgment of March 31, 1993, NZA 1993, 646 (649 f.).

§ Section 4 sentence 4 KSchG only applies if the employer is aware of the circumstances justifying the obligation to obtain ^consent177. Otherwise (in cases of Section 18 (2) no. 2), the three-week period for bringing an action applies, as it cannot justifiably be assumed that consent has been obtained in advance. Subsequent approval analogous to Section 5 (1) sentence 2 KSchG cannot be considered, as the circumstances of the parental leave entitlement can hardly remain unrecognized by those affected, unlike an incipient pregnancy.

The violation of Section 18 is an “other reason” within the meaning of Section 13 (3) KSchG, so that termination of the employment relationship in return for severance pay in accordance with Sections 9 and 10 KSchG is not an option if the dismissal is not also socially or morally unethical or violates Section 626 BGB.

The burden of presentation and proof for the requirements of the special protection against dismissal also lies with the employee if part-time employment within the meaning of Section 18 (2) is in question. In the case of § 18 Para. 2 No. 1, it must be shown in particular that the working hours do not exceed the permitted 30 hours per week. In the case of part-time work without parental leave, the actual or potential entitlement to parental allowance must be presented and, if necessary, proven.

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176) BAG, judgment of July 3, 2003, AP No. 7 to § 18 BErzGG.
177) Raab, RdA 2004, 321 (331).

In order to ensure uniform administrative practice in the declaration of admissibility of terminations, the Federal Government may, with the approval of the Bundesrat, issue implementing provisions in accordance with Section 18 (1) sentence 4.

The administrative regulations on protection against dismissal during parental leave in force since January 2, 1986 have been replaced by the following “General administrative regulation on protection against dismissal during parental leave (Section 18 (1) sentence 4 of the Federal Parental Allowance and Parental Leave Act)”:

1. task of the authority

The supreme state authority responsible for occupational health and safety or the body (authority) designated by it must examine whether a special case exists. Such a special case exists if it appears justified that the employee’s interest in the continuation of the employment relationship, which is considered to have priority under Section 18 (1) sentence 1 of the Act, takes precedence over the interests of the employer due to exceptional circumstances.

2. existence of a special case

2.1 In the examination in accordance with number 1, the authority must assume that a special case within the meaning of Section 18 (1) sentence 2 of the Act exists in particular if

2.1.1 the business in which the employee is employed is closed down and the employee cannot continue to be employed in another business of the company,

2.1.2 the operating department in which the employee is employed is closed down and the employee cannot continue to be employed in another operating department of the company or in another company of the enterprise,

2.1.3 the business or business division in which the employee is employed is relocated and the employee cannot continue to be employed at the new location of the business or business division and also in another business division or in another business of the company,

2.1.4 the employee refuses reasonable continued employment in another job offered by the employer in the cases of numbers 1 to 3,

2.1.5 the continuation of the employment relationship after the end of parental leave jeopardizes the existence of the company or the economic existence of the employer,

2.1.6 particularly serious breaches of contractual obligations by the employee or intentional criminal acts by the employee make it unreasonable for the employer to maintain the employment relationship.

2.2 A special case within the meaning of Section 18 (1) sentence 2 of the Act may also exist if the employer’s economic existence is unreasonably impeded by the maintenance of the employment relationship after the end of parental leave, so that it comes close to jeopardizing the employer’s existence. Such an unreasonable impediment can also be assumed if the employer comes close to jeopardizing its existence because

2.2.1 the employee is employed in a company with, as a rule, 5 or fewer employees, excluding those employed for vocational training, and the employer is urgently dependent on a suitably qualified replacement employee for the continuation of the company, whom he can only employ if he concludes a permanent employment contract with her; when determining the number of employees employed, part-time employees with a regular weekly working time of no more than 20 hours are to be taken into account with 0.5 and no more than 30 hours with 0.75, or

2.2.2 the employer is unable to find a suitably qualified replacement for a fixed-term employment contract due to the continuation of the employment relationship after the end of parental leave and therefore several jobs would have to be lost.

3. discretion

If the authority comes to the conclusion that a special case within the meaning of Section 18 (1) sentence 2 of the Act exists, it must decide at its discretion whether the employer’s interest in terminating the employment contract during parental leave outweighs the employer’s interest to such an extent that the termination intended by the employer is to be declared permissible by way of exception.

4. form of the application

The employer must apply for a declaration of admissibility of the dismissal in writing or on record to the authority responsible for the registered office of the company or department. The application must state the place of work and the full address of the employee who is to be dismissed. The application must be substantiated; any evidence must be attached or named.

5. decision; prior hearing

5.1 The authority must take the decision without delay.

5.2 Before making its decision, the authority shall give the employee concerned and the works or staff council the opportunity to comment on the application in accordance with § 4 either orally or in writing.

6. declaration of admissibility subject to conditions

The admissibility of the termination can be declared subject to conditions, e.g. that it will not be given until the end of parental leave.

7. form of the decision

The authority must issue its decision (declaration of admissibility or rejection with information on legal remedies) in writing, give reasons in writing and serve it on the employer and the employee. A copy must be sent to the works or staff council.

8. employees in vocational training, employees working from home

8.1 Those employed for their vocational training are deemed to be employees within the meaning of the above provisions.

8.2 The above provisions shall apply mutatis mutandis to employees working from home and their equals (Section 1 (1) and (2) of the Home Work Act), insofar as they work on the piece, with the proviso that the employer is replaced by the client or the intermediate foreman (cf. Section 20 of the Act).

9. entry into force

This General Administrative Regulation shall enter into force on January 1, 2007.

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178) BAnz. no. 1 of January 3, 1986, 4.
179) BR-Drs. 832/06; BAnz. of January 3, 2007, no. 5, 247.